Will Whois Changes from GDPR Cause an Uptick in UDRP Filings?

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The Whois system is going to change to the GDPR regulations that are coming very soon. There was discussion about these changes at the most recent ICANN meeting, and I know the ICA is working to address concerns of domain investors and domain name owners in general.

One concern I have is related to UDRP filings. From what I understand, the UDRP was created as a way to help brands and trademark holders recover domain names from cybersquatters. A brand owner that is concerned about a domain name infringing on its mark can do a Whois search to see who owns the domain name, and that offer some clarity. This clarity could cause them to opt to not file a UDRP because they know it is going to be a loser for them.

I will illustrate my concern with an example:

Let’s say a bank called Example Bank was founded in 2005. They went with a longer tail domain name but later decide that they want (or need) the exact match Example.com. Let’s say that my last name is Example (or my company is called Example Domains, Inc.), and I bought Example.com back in the late 1990s but use it for email and don’t have a resolving website. With the Whois system the way it is, Example Bank could do a Whois search and see the domain name is owned by Elliot Example or Example Domains, Inc.. They would (or should) then realize a UDRP would fail because obviously there is no bad faith registration since my last name or company name matches the domain name. A better example would be a domain name that is more specific and not a keyword.

Without having a Whois database to access, the company could not easily see that the domain name is owned by someone who has a right to it. While there are plenty of examples of UDRP filings that would appear to be DOA even with Whois information accessible, I would imagine there are many people or companies whose lawyers advise them it is not best to pursue a UDRP because it is unwinnable. It seems that privatizing all domain name ownership records could lead to more UDRP filings.

There has been talk about possibly allowing attorneys and others to be able to access accurate ownership information, but I don’t think this has been determined yet. I understand that things are in flux right now, but I am concerned that there could be an influx of UDRP proceedings as a result of major changes to the Whois system.

As always, your thoughts are invited.

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